SUPREME COURT.

HAMPSHIRE, (Mass.)

SEPT. TERM, 1816.

#### *The Com’t*h vs. *George Bowen.*

Murder.

To counsel another *commit*suicide, and he does cummit it in consequence thereof, the counseller is guilty of murder.

The presumption of law is, that criminai advice has the influence and effect intended by adviser.

Present—Honourable *Isaac Parker,*Chief Justice.

*Charles Jackson, Samuel Putnam,*Associates.

*Morton,*Attorney General, for Commonwealth.

*Bates*and *Lyman,*for the Prisoner.

The prisoner was arraigned for the murder of Jonathan Jewett, by counselling and aiding him to hang himself in prison, to avoid the ignominy of a public execution, to which he had been sentenced for the murder of his father. ’

, „ . . The indictment contained two counts. The first alleged that one Jonathan Jewett, in the night time of the 8th of November, 1815, at Northampton, murdered himse^ hy hanging himself; and that the prisoner, Bowen, before the said self murder, on, &c. at, &c. feloniously, &c- did counsel, hire, persuade, and procure the said Jewett the said felony and murder of himself, to do and commit, &c.

The second count alleged that the prisoner murdered the said Jewett by hanging him, against the form of the statute, &c; - "

EVIDENCE.

The facts of the case appeared as follows: Cephas Clap, the keeper of the jail in Northampton, where Jewett had been confined, said, he *227had frequently heard Bowen and Jewett conversing; that Bowen would say, “ If you are sentenced, you will be hung, you will then go there (alluding to the place of execution)—if you let them hang you, you are a d-d fool;—I had rather hang myself twice than be hung once.” They used to talk mysteriously together; Bowen would say, “ Will you do it *1”*Jewett would reply, “ It can’t be done.” Answer, “ It can; I would make a string of my bed-ticking, and hang myself to these grates in five minutes.” Bowen was not in the same room with Jewett, but in the next department. Witness heard the advice frequently repeated; but Jewett said,. Bowen could not hang himself in his room—Bowen told him not to mind what the cleagyman said, for" it was alld-d nonsense; for there was no hell—he could not die but once, and then it was all over.”

Cross examined.—Talked often with Jewett about his hanging himself; told him it was as bad to take away his own life as that of another man’s, and that he would then have two murders to answer for. Jewett thought it was worse; this was after Bowen’s advice. Jewett would ridicule the visiting ministers behind their backs: had no more religion than a brute; —when the warrant for his death was read to him, he was rather serious, but witness soon after heard him sing a very indecent song. Bowen never saw Jewett, to the knowledge of the witness. Whitehall and Up-ham were in Bowen’s room when Jewett hung himself; all the prisoners talked with him, and were all noisy; the windows of the lower story were twelve feet 4 inches apart; the partition walls were about 3 feet in thickness. Jewett was dull in conversation, in learning, and in natural capacity. Never heard Jewett say he intended -to destroy himself; but one man advised him to push his head against the wall, running from one side of the cell to the other. He was found dead November 9th, 1815, hanging by a rope to the gratings of the windows, his knees resting on the floor, his head sunk about half a foot below the bottom of the windows, the rope tied in a fast knot. The rope could not have come froth his bedstead, which was made entirely of boards. Don’t know whence it came; it might have been given him from Bowen’s apartment; he used to put his hand out of the grate, and swing a string with a weight attached to it; Jewett had a stick to catch the string; did not see such a stick after his death, and never saw a rope in Bowen’s room ; suspected the rope might have come from the room over Jewett’s. Jewett might have concealed a cord in his bed; he-always manifested much hardness of heart.; spoke lightly about his coffin and his cap, in which it was intended he should be executed. He hung himself in the night. Witness heard no noise, although he went around the prison at about three o’clock.

Isaac Whitehall, sworn—Was a prisoner in the room with Bowen, who was nick-named Speaker of -the House; heard Jewett say that the Hon. Mr. Bowen told him, that as he had never been at war with God, he had no peace to make with him. The sheriff came and told Bowen he would chain him in the dungeon if he did not desist from advising Jewett to hang himself, which made him quiet for a short time; but he soon became as bad as ever. Witness asked Bowen how Jewett could murder himself; he said there was a cord aloft, and he could get it well enough. Bowen would continually remind him how long he had to live, from weeks down to his days and hours. Witness was awake during the *228night Jewett hung himself, and heard him come across his cell to the. wall, and ask Bowen “ what o’clock 1” Bowen told him “ three, and you have but just thirteen hours to live.”—“Well (said Jewett) I will go to pray.” “ That’s you,” replied Bowen, an expression common to him to denote pleasure. In about fifteen minutes afterwards, witness heard a noise, as if one had removed a stone in the room above ; and presently a sound like that of some one choking. Ran to the window to call the jailer, but Bowen told him to hold his tongue, saying, “What in h—11 do you care for a d——d negro V’—he soon heard something like a person thumping his toes on the floor. After this, heard the jailer come to Jewett’s door and call to him, but received no answer—Clap observed, “Well, I believe Jonathan (Jewett) has made away with himselfupon which Bowen, raising himself suddenly, said,111 am as glad as if I had a hundred dollars. Now Clap and old Mattoon have lost their fees, and I have saved the country two hundred dollars slick.” Witness frequently heard Bowen tell Jewett, 11 he never would go upon the hill, (meaning the place of execution,) to have the boys make fun of him.”

Cross examined.—There was no cord, to his knowledge, conveyed from their room to Jewett’s, and thinks Bowen could not have given him a rope without assistance—there -was a rope in their room, which Bowen used to hide when the jailer came in, but it was larger than that which Jewett had—believes Bowen’s legs were in irons the night on which the crime .was committed—saw Jewett once through the wicket of his door, and afterwards saw his ghost! (Witness here details his superstitious impressions, which of course are not necessary to be repeated.) Witness used to tell Bowen that he did wrong to tell Jewett to hang himself—but never heard Jewett say he intended to do so. Used to split the boards of the bedstead to get sticks in their room. Upham said nothing during' the time when the hanging took place.

- John L. Partridge sworn.—Attended the jail in Mr. Clap’s absence, who had requested him to listen to the conversation of the prisoner with Jewett. Frequently, every day, heard conversation between Bowen and Jewett; the former advising him to hang himself where he was, and telling him he was a d—d fool to let Mattoon come and hang him, for he could die but one death. Jewett said he would think of it, but said he had nothing to do it with. Bowen said, 111 will help you all I can.” In the ourse of conversation, Jewett" said, 111 had rather die honorable than kill myself here.” Witness was working in that part of the jail where he could hear them as distinctly as if he had been under their window.

Ebenezer Mattoon, high Sheriff, sworn, said he threatened to confine Bowen if he did not cease to advise Jewett to destroy himself; believes he told Jewett, if he wanted to hang himself, he had better do it in his presence; and did not know but he told him he would furnish the means. Bowen did not deny having advised Jewett, but said his tongue was his .own. The latter said he had no idea of killing himself, even on the evening previous"to his death; but he sometimes was mute when questioned on the subject. A cod-line w.as found on Jewett, not sufficient to support his whole weight. Jewett appeared rather penitent on the last evening, though when his cap was tied, he treated it very lightly.

*229Here the evidence for government closed.

Witness for the prisoner.—N. Turner, sworn. Worked in the jail; had heard Jewett say he would disappoint the people who should come on the plain, (alluding to the place of execution ;) he would invite people to come and see him hung, and when they were gone, he would say to me, “ those people will be disappointed.” He once mentioned he should pursue the plan of the man in Vermont, who destroyed himself in prison ¡ but after-wards said it would be impossible to bang himself where he was. Never heard Bowen, except in an indirect way, advise Jewett to commit suicide.

Shubael Wilder said that he Worked in the jail, and heard Jewett say he would not go to the place of execution, He said there were many ways to avoid it; he could get up into the window and throw himself headlong on the floor; witness told him he thought he might do it if his courage held out. He replied, “ you will see what my courage will do. Never heard Bowen advise him to hang himself,

[The counsel for the prisoner here attempted to invalidate Whitehall’s testimony, by proving the badness of his character. They wished to read a mittimus upon an arrest with one Upham, for passing counterfeit money ; but the court decided that the reading such evidence was inadmissible.]

Elihu Sandford said he used frequently to see Jewett in confinement, and he employed him to get tobacco from his friends; but they nevei- sent any by him. He told witness last August that Gen. Mattoon should never hang him ; and said he wished he would tell Ward to bring him that tobacco. Witness offered to give him some, or buy it for him, but he refused, and said he wanted that tobacco !

The defence set up by the prisoner’s counsel, Messrs. *Lyman,*and *Bates,*was, 1st. That Jewett’s crime was felonía de se, and that Bowen could not, therefore, have committed murder upon him. 2dly. That it was not clear that the prisoner’s advice induced Jewett to perpetrate the felonious act. 3d. That Bowen should have been indicted as an accessary, and not a principal.

The remarks of the counsel were, ingenious and eloquent, but we have no room to introduce them.

The attorney general denied the force of the legal objections, but agreed that if Bowen’s advice was not the procuring cause of Jewett’s death, he ought to be acquitted. He laboured, therefore, to prove this fact from the testimony which has been detailed.

*Parker, C. J.,*

in charging the jury, stated that, con*230sidering the similarity between the' nature of suicide and the murder of another, and the consistency and uniformity of writers and.principles on this particular species of mur¿¡¿r, if the jury should find the facts as alleged in the indictment, they might safely pronounce the prisoner guilty. The important fact to be inquired into was, whether the prisoner was instrumental in the death of Jewett, by advice or otherwise. [Here his honour recapitulated the evidence.] The question then, is, did this advice procure the death of Jewett?

The government is not bound' to prove that Jewett would not have hung himself had Bowen’s counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is, that advice has' the influence and effect intended by the adviser, unless it is shown to have been otherwise ; as that the counsel was received with scoff, or was manifestly rejected and ridiculed at the time it was given. It was said in the argument, that Jewett’s abandoned and depraved character furnishes ground to believe that ñe would .have committed the crime without such advice from Bowen. Without doubt he was a hardened and depraved wretch. But it is in man’s nature to revolt at the idea of self destruction. Where a person is predetermined upon the commission of this crime, the seasonable admonitions of a discreet and respectful friend would probably tend to overthrow his determination. On the other hand, the counsel of an unprincipled wretch, stating the heroism and courage the self-murderer displays, might induce, encourage, and fix the attention, and ultimately procure" the perpetration of the dreadful deed. And if other men would be influenced by such advice, the presumption is, that Jewett was *231so influenced. He might have been influenced by many powerful motives to destroy himself. Still the inducements might have been insufficient to procure the actual commission of the act, and one word of additional advice might have turned the scale.

Independent of the reasons of his honour the chief justice, I have not been able to find a single authority in the whole range of criminal law to support this decision but the case in Keplyng's Rep. 52, and 4 Bl. Com. 188. The words in Blackstone are, "If one persuade another to kill himself, and he does so, the adviser is guilty of murder."

If you are satisfied that Jewett, previously to any acquaintance or conversation with the prisoner, had determined within himself, that his own hand should terminate his existence, and that he esteemed the conversation with the prisoner so far as it affected himself as mere idle talk, let your verdict say so. But if you find the prisoner encouraged, and keep alive motives previously existing in Jewett’s mind, and suggested others to augment their influence, you will decide accordingly.

It may be thought singular and unjust, that the life of a man should be forfeited merely because he has been instrumental in procuring the murder of a culprit within a few hours of death by the sentence of the law. But the community has an interest in the public execution of criminals; and to take such an one out of the reach of the law is no trivial offence. Farther ; there is no period of human life which is not precious as a season of repentance, The culprit, though under sentence of death, is cheered by hope to the last moment of his existence. And you are not to consider the atrocity of the offence in the least degree diminished by the consideration that justice was thirsting for its sacrifice, and that but a small portion of Jewett’s earthly existence could in any event remain to him.

The jury found the prisoner *Not Guilty.*